Circuit judge orders end of parole-credit program

SOMERSET — The state has stopped releasing prison inmates under a controversial parole-credit program after a judge said the rules had been applied illegally.

Circuit Judge David A. Tapp issued a permanent injunction barring use of the rules to release felons from prison or from parole supervision.

Tapp had earlier ruled against using the policies to release felons from his three-county circuit in Southern Kentucky, but he extended that ban statewide in a ruling made public Thursday.

The Department of Corrections said it would comply, scotching an initiative under which more than 5,600 people have been released from parole or prison since late May 2008. The department delayed dozens of releases scheduled for Friday because of the ruling.

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However, state officials said the department would appeal the ruling quickly in hopes of getting it overturned.

"We feel confident that the program will continue," said Gov. Steve Beshear, who said he disagreed with the ruling.

A prosecutor involved in the case applauded the decision, however, and said he will seek an order for people released under the policies to be rearrested or placed back under parole supervision.

"Although our criminal justice system demands reform, turning thousands of people loose like Fidel Castro is not getting smart on crime. It is a quick fix, causing more problems than it ever actually solves," Commonwealth's Attorney Eddy Montgomery said. His office challenged the releases, arguing they were endangering the public. Tapp ruled in that case.

Last year, changes were put in place giving felons additional credit toward completing their sentences. That means they can be released from prison or from parole supervision earlier than under previous rules.

The legislature put language in the state budget bill that led to the changes. One goal was to save money by reducing the prison population.

Corrections officials estimated the changes would save more than $13 million during the current two-year budget, which runs through June 30, 2010, Tapp's ruling said.

As of mid-April, the Department of Corrections had released 3,179 parolees from supervision and 2,446 inmates from prisons and jails in about 11 months under the policy. Many other people have gone to prison in that time, of course, but the prison population is lower than when the new credit calculations went into effect.

There were 22,634 state felons in prisons or jails when the program started, and 21,485 on Thursday, said Lisa Lamb, spokeswoman for the Department of Corrections.

Retroactive credits

The program has effectively cut costs, said state Rep. Robin Webb, D-Grayson and a member of the House Judiciary Committee.

She said there was a projected $40 million shortfall in the corrections budget when lawmakers started working on it early last year. Without measures such as parole credits to cut costs, other programs in state government would have suffered in order to patch up that deficit, Webb said.

"That money would had to have come from somewhere," she said.

Tapp questioned how much money the state has saved with the parole credits, however, saying no one took into account the fact that an estimated 30 percent of those released would commit new crimes and return to prison.

But Tapp said the question he had to decide was not whether the rules saved money. Rather, the issue was whether use of the rules complied with the law, and it didn't, Tapp said.

The reason is the Department of Corrections gave inmates and parolees credit toward finishing sentences based on periods they'd been on parole before the legislature passed the law that led to the changes.

That retroactive use of the credits wasn't authorized, said Tapp, who presides in Pulaski, Lincoln and Rockcastle counties.

How the rules work

Under old rules, if a person sentenced to five years in prison had served one year, then been on parole two years, then violated parole and been sent back to prison, he would have the remaining four years of his original sentence to serve.

Under the new rules, he would get credit for the two years on parole — street credit, it's sometimes called — leaving only two years of the original sentence to serve.

Tapp cited one case of a man from Pulaski County convicted of murder in 1978, but later paroled and convicted of new crimes more than once. He got credit for 905 days on parole and was released from prison, Tapp said.

Webb said she thought it was acceptable to apply parole credits retroactively because inmates are under the control of Corrections.

Cutting costs wasn't the only motivation for giving people credit for successful time on parole, Webb said. It's also a legitimate way to encourage good behavior.

Tapp, however, said use of the parole credits had allowed thousands of people to get out of prison or off supervision far earlier than judges, attorneys, the public and victims had anticipated.

The provision "took no account of the nature of the crimes committed by those granted early discharge and mandated early release without regard to whether the worst sexual predators and drug abusers had completed treatment regarded as essential by sentencing courts," Tapp wrote.

The judge also appeared to take a dim view of how the rules came about — the authorizing language slipped in as two sentences in a massive budget bill in 2008, with no public debate.

Attorney General Jack Conway also challenged the 2008 changes in use of parole credits, but Franklin Circuit Judge Phillip J. Shepherd reached a different decision than Tapp, denying a request to block inmate releases.

Conway appealed to the state Supreme Court, which is scheduled to hear arguments in August.

Montgomery and Webb agreed that the fight over parole credits points up the need for comprehensive reform of the state's penal code.

It makes no sense to pass tough laws, then complain about high prison costs and look for ways to cut sentences of people convicted under those laws, Montgomery said. "The legislators are going to have to make some tough decisions," he said.